Smith v. Stringham

DixoN, C. J. The deposition of the witness Harger, taken before a notary public in the state of Illinois, though it may not have been admissible before the justice of the peace, was admissible before the county court. Section 28 of chapter 137 of the Eevised Statutes provides, that ‘£ all depositions and affidavits taken out-of the state in any other manner than is prescribed in the three preceding sections, if taken before any notary public or other person authorized by the laws of any state or country to take depositions, maybe admitted or rejected, at the discretion of the court; provided, that no such deposition or affidavit shall be admitted unless it shall appear that the adverse party had sufficient notice of the taking thereof, and opportunity to cross-examine the witness.” It appears from the judgment roll that sufficient notice of the time and place of the taking of the deposition was given to the defendant; and it was, therefore, a matter of discretion with the county court to admit the deposition, which cannot be assigned for error here. This provision of the statute was alluded to by 606 tMs court in Lightfoot v. Cole (1 Wis. 39, 40), and in Warner v. Hardy (4 id. 229); in both, of which cases it was assumed that the court might, in its discretion, admit depositions so taken. The language of the statute is certainly too clear to allow any other construction. The deposition having been properly admitted, the fact that the chest of tea came to the possession of the defendant was very clearly established. In truth, the defendant did not pretend to deny it. He testified that he recollected of the chest of tea in dispute, and presumed it was used in his hotel. And his further statement that it was not a full chest — that Bellinger told him it was partly used up — was not sufficient proof of that fact. It was but hearsay evidence, and proved nothing. It did not, as the defendant’s counsel seems to suppose, contradict the testimony of the witness Harger that the chest was unopened when it came to the possession of the defendant. Besides, it does not appear when the conversation between the defendant and Bellinger took place. It may have been a considerable time after the tea was left in possession of the defendant by Harger, and so the chest have been opened, and the tea used in the hotel, by some of the servants or employees of the defendant. The defendant testified that the tea, whether a full or only partly filled chest or package, was used by his direction; and, on the whole, we are of opinion that the findings of the court were sustained by the evidence, and that the judgment ought not to be disturbed. By the Court. —Judgment affirmed.